Maxout, Cap-exempt for H1B Visa while H4 COS pending

My 6 year H1B Visa maxes out on 26 Aug 2020. My Perm was filed on 5th Feb 2020.

I am planning to change my status to H4 on my husband s H1B Visa to stay legally in US.

  1. Let’s say i stop working from Aug 1st but my COS doesn’t get approved until say 30th Aug. Does that mean although i stopped working on Aug 1st but i still lost my 26 days of cap exempt days ?

  2. Let’s say I used up all my cap exempt days due to travel restrictions, when my I-140 gets approved do I fall in the 65000 h1b visa capped category for the next year and have to go through the lottery process?

Thanks in advance for your help.

You are cap exempt after i140 is approved.

I am in my 8th year of H1B and have my I-140 approved on feb 2018 and few months ago, I changed my employer. This new employer has NOT yet started PERM processing and I doubt he would with current covid situation.

I think, I need not wait for my current employer to file for PERM as I-140 of my immediate previous employer can be used for H1 transfer/extensions until my PD(June 2017) becomes current-correct? pls confirm.

I am planning to go as dependent on my spouse H1B as current project with my employer likely to get completed in few weeks.

So, I can go to H4 and stay in US and keep looking for employer who can file COS from H4 to H1B with my approved I-140 OR do H1 transfer with another employer. The latter case might be difficult in current situation.

Do you foresee any legal issue with former case(apply for H4 and then look for job)? Can you please advise.

Hi @gmnikesh

These two pages will answer all your questions:

Thanks Anil for the reply.

Hi Anil
I know its a very long detailed post and I appreciate your time and help on this.

My H1B Visa Max out was on 26 Aug 2020 .I applied COS to H4 to be cap exempt from 12 Aug 2020 as my Perm was approved in June and now in Sep my Employer has applied for my I-140 in premium.

I am planning to apply for H4EAD using my husband s approved I-140 so, I wanted to consult with you on below points-

  1. Suppose my H1B Cap Exempt Extension is approved first(using my I-140) and I leave for India for H1B stamping then will my period of stay(from Aug 12 - e.g. Jan 2021) in USA become an issue? Assuming that H4 is not approved before I exit USA.

  2. In case my H4 is approved by year end of 2020 and I apply for H4EAD too. But eventually if I have to leave for H1B stamping in Jan 2021(positive path) then will my H4EAD processing stop when I exit USA?
    Is it possible to have both H1B and H4EAD approval but use only one of them?

  3. Given the current processing times - do you suggest to apply H4EAD or rather wait for my H1B Extension approval.


Hi @AK22

The time you spend in US while H4 COS is pending should be counted as legal.

You can have both H1B and H4 EAD buy EAD cannot be used until you are on H4 status.

Hi @anil_am22 , I am also in similar situation and I have a question,

My H1B maxing out on Oct-17,2021 and my PWD for perm process is in progress. With the given timeline, I guess I wont get my 140 before the maxout date to extend my h1b visa.

I have asked my employer to file h1 to H4 COS + EAD through my husband’s 140 (He also works in the same company and he has approved 140). They agreed to apply H4 + EAD with future start date (Aug 1 2021) so that I can continue to stay in the country after H1 maxout.

With the H4 process timeline, Lets say I dont get my H4 approval before Aug 1 2021, Should I stop working from Aug 1 2021? My employer said I can work until H1B max out date if I dont get my H4 approval before Oct 17,2021.

If I work until Oct 17,2020 - Will there be any problem in COS to H1B and extension after I get my 140 (lets say I get my 140 in 2022 Jan) since I will use all my 6 years in h1b?

Thanks for your help!